Firebrand ex-Labor leader Mark Latham is fighting a proposed court order to bar him from saying a rival MP engaged in disgusting sex acts, arguing it would impinge on his ability to engage in political debate.
The former federal opposition and NSW One Nation leader was in September ordered by the Federal Court to pay independent MP Alex Greenwich $140,000 in damages over a tweet sent during the 2023 state election.
The defamatory Twitter post was made during a heated online argument between the two politicians.
It resulted in a torrent of abuse being flung at Mr Greenwich, who is gay and a vocal advocate for the LGBTQI community.
On Wednesday, barristers for the two politicians appeared in court as Justice David O'Callaghan was asked to permanently restrain Mr Latham from making the same defamatory remarks.
The now-independent NSW MP has resisted the move, saying it would breach his implied constitutional freedom from fully engaging in political discussion.
"You’re talking about restraining my client from making a comment about another MP," his barrister Guy Reynolds SC said.
Justice O'Callaghan pointed out that Mr Latham could continue to say "anything he likes" about Mr Greenwich, except for repeating the contents of the tweet or its imputation.
“He still shouldn't be subject to that restriction,” Mr Reynolds replied.
The judge questioned whether Mr Latham should be free to say anything to rival politicians, even something as "vulgar and uninformed" as the offending tweet.
In response, Mr Reynolds noted this was "not a court of taste".
"There is, as everyone knows, a great deal of cut and thrust in politics," he said.
Matt Collins KC, representing Mr Greenwich, argued there was a real risk Mr Latham would repeat the defamatory comment given he wanted the chance to freely criticise the Sydney MP in the future.
If the comment was made again, there would be a similar torrent of abuse launched against Mr Greenwich and further damages would not be an appropriate remedy, Dr Collins said.
The remark was a personal attack and not political commentary, he added.
Mr Latham has appealed Justice O'Callaghan's decision, including the $140,000 ordered in damages, and has ditched his former legal counsel over claims they made concessions at trial that he did not agree to.
This included that he did not know, at the time of the tweet, what Mr Greenwich did in the privacy of his own bedroom.
Mr Reynolds argued the inner-city MP should candidly inform the court whether he engaged in the type of sexual activity described in the tweet.
"He promotes himself, as he’s entitled to do, as a gay member of parliament," he said.
"He's been married for years. Is there really any bone fide dispute about this issue?”
Dr Collins has asked the court to order that Mr Latham pay indemnity costs for his client's legal bill from running the case.
He said the ex-One Nation state leader could have ended the dispute weeks after his tweet but instead rejected a $20,000 settlement offer which included an "anodyne" apology.
But Mr Reynolds questioned whether Mr Greenwich was actually required to pay his solicitors at Dowson Turco Lawyers around $541,000 in legal costs.
He also said there was no proof to claims by the independent MP that funds donated to not-for-profit Climate 200 to help run the lawsuit would have to be repaid.
Justice O'Callaghan reserved his decision on the injunction but ordered Mr Latham to pay over $7000 in interest to Mr Greenwich.
A further hearing will be scheduled to resolve the costs issue.
